October 11, 2020

Old tale; new tactics, victims and weapons

       When I was in law school, a Chinese LL.M. student introduced me to the Opium Wars. Back in the 1700s and 1800s, the British empire made a fortune by selling opium to the Chinese. Seeing all the death and waste it caused, a succession of Chinese administrators tried to restrict the drug starting in 1729, with no luck. Eventually, in 1839, the Daoguang Emperor put his foot down, naively thinking he could finally rid his country of the drug. No, the British attacked and after a series of victories, they forced him to continue allowing the import of opium for decades. This chain of events had a devastating impact on China, one that will likely haunt its memories forever.

       Although such profiteers can no longer rely on colonialism and military attacks, they have other tools -- and new victims: American victims. For example, when Johnson & Johnson wanted to make money by selling opioids in Oklahoma, it did the following: First, it created a "'super poppy' that was particularly rich in opiates" to maximize its drug's addictive punch. It then designed an intricate plan, an "influence map" -- which it used to change the viewpoint of everyone who could interfere with its planned opioid sales, government officials and private sector folks alike. It also paid its employees bonuses for targeting doctors and getting them to write more opioid prescriptions. 

       As in nineteenth century China, this led to countless deaths and waste, forcing the government to step in and try to fix the problem. This was an expensive fix, so the State of Oklahoma asked Johnson & Johnson to pay a fraction of the cost. But the drug maker refused, and used O'Melveny to fight the state in court (see these background posts on that trial, which Johnson & Johnson lost: onetwo, and three). 

       Law360 reports that O'Melveny just filed its opening brief on appeal, "assailing" the state as "radicals." I didn't read the brief. I read the first page, saw it compare opioids to "the health hazards of corn syrup and red meat" and realized I had more enriching things to do with my time. The Chamber of Commerce is also fighting for Johnson & Johnson. Their strategy is to threaten that businesses will leave Oklahoma if the court doesn't rule for the drug maker. That's scary; what's a judge to do? Rule for the victims and risk a boycott of your state's economy, or get in line? 

       It's a shame that history is allowed to repeat itself. And I may have grown cynical, but this opioid racket will repeat again in the future. If there's a way to make money by victimizing others, some unscrupulous person will do it -- and O'Melveny will be eager to represent them. Here is O'Melveny's chair, Brad Butwin, boasting about the money his firm made on the Oklahoma opioid trial, as well as the money he expects to make on future opioid trials and appeals.  

       [Addendum: The Oklahoma Supreme Court ruled in favor of Johnson & Johnson in the appeal.]
O'Melveny, omm, , charles lifland, jonathan schneller, steve stephen brody, jeffrey fisher, alex gorsky, johnson and johnson